The Emerson Electric Manufacturing Company, a Corporation

National Labor Relations Board - Board Decisions

Jul 1, 1939

13 N.L.R.B. 448 (N.L.R.B. 1939)

In the Matter of THE EMERSON ELECTRIC MANUFACTURING COMPANY,
A CORPORATION and LOCAL No. 1102 , UNITED ELECTRICAL , RADIO, AND
MACHINE WORHERs OF AMERICA , AFFILIATED WITH THE COMMITTEE
FOR INDUSTRIAL ORGANIZATION
Case No. C--908.Decided July 1, 1939
Electric Motor and Fan Manufacturing Industry-Notice: irregularity of
service of complaint , respondent not prejudiced by, when facts show it actu-
ally received a copy-Interference, Restraint , or Coercion: charges of , not sus-
tained-Discrimination : charges of , not sustained-Complaint : dismissed.
Mr. Herbert N. Shenkin, for the Board.
Mr. Robert N. Hawes, of St. Louis, Mo., and Mr. George Rogers,
of Washington, D. C., for the respondent.
Mr. Morris J. Levin, of St. Louis, Mo., and Mr. James B. Carey,
of New York City, for the Union.
Miss Fannie M. Boyls, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local No. 1102,
United Electrical, Radio & Machine Workers of America, affiliated
with the Committee for Industrial Organization, herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Fourteenth Region (St. Louis, Mis-
souri), issued its complaint dated May 11, 1938, against The Emerson
Electric Manufacturing Company, St. Louis, Missouri, herein called
the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.
In respect to the unfair labor practices, the complaint alleged,
in substance, that the respondent on November 29, 1937, discharged
one of its employees, William H. Cortor, and has since refused to
reinstate him, for the reason that he joined and assisted the Union
13 N. L. R. B., No. 53.
448
THE EMERSON ELECTRIC MANUFACTURING COMPANY 449
and engaged in concerted activities with other of the respondent's
employees for the purposes of collective bargaining and other mutual
aid and protection; that the respondent thereafter attempted to
undermine and discredit the Union and discourage membership of
its employees therein by issuing to its employees, without conferring
with or notifying the Union, a booklet entitled, "Rules and Informa-
tion for Employees," which conflicted in many ways with the terms
of a contract which had been negotiated between the respondent and
the Union, and which contained a form to be signed by the employees
by which they agreed to abide by the rules and information con-
tained in the booklet; that the respondent, by refusing to arbitrate
in accordance with the terms of its contract with the Union the dis-
putes concerning the discharge of Cortor and the issuance of the
booklet and also by its refusal to arbitrate a dispute concerning
whether or not a new wage-rats group should be created for a new
type of motor being manufactured by the respondent, discouraged
and is discouraging the membership of its employees in the Union,
and thereby has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
Copies of the complaint and accompanying notice of hearing were
duly served upon Robert N. Hawes, as attorney for the respondent,
and upon the Union. On May 16, 1938, the respondent filed an
answer in which it admitted the allegations of the complaint rela-
tive to the, nature of its business and the effect of its business upon
commerce but denied that it had engaged in any of the alleged unfair
labor practices.
Pursuant to the notice, a hearing was held at St. Louis, Missouri,
from May 23 to and including May 27, 1938, before Horace A.
Ruckel, the Trial Examiner duly designated by the Board. The
Board, the respondent, and the Union were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties. At the commence-
ment of the hearing, the respondent moved to dismiss the complaint,
alleging that the Board did not have jurisdiction over the matters
set forth in the complaint, and alleging further that the complaint
failed to set forth specific facts constituting unfair labor practices
by the respondent. The motion was denied. The respondent objected
to the introduction in evidence by counsel for the Board of a copy
of the complaint and other exhibits upon the ground that a copy of
the complaint was never served upon the respondent. The objection
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was overruled.t At the conclusion of the Board's case and again
at the conclusion-of the hearing, the respondent moved to'dismiss the
complaint. The motions were denied. During the course of the
hearing the Trial Examiner made other rulings on various motions
and on objections to the admission of evidence. The Board has
considered all the rulings and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On September 9, 1938, the Trial Examiner filed his Intermediate
Report in which he found that the respondent had engaged in and
was engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) and (3) of the Act, but that the respondent by refusing
to arbitrate the dispute concerning the wage-rate question did not
engage in an unfair labor practice. The Trial Examiner recom-
mended that the respondent cease and desist from engaging in the
unfair labor practices and that it reinstate with back pay the em-
ployee found by him to have been discriminatorily discharged. On
September 21, 1938, the respondent filed exceptions to the Interme-
diate Report and requested oral argument before the Board on the
exceptions.
Pursuant to notice, a hearing was held before the Board on March
16, 1939, in Washington, D. C., for the purpose of oral argument.
The respondent and the Union were represented by counsel and
participated in the argument. The Board has considered the excep-
tions to the Intermediate Report. As indicated by our findings, con-
clusions of law, and order set forth below, we sustain the exceptions
to the findings of the Trial Examiner that the respondent engaged
in unfair labor practices.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Emerson Electric Manufacturing Company is a corporation
organized under the laws of the State of Missouri on September
24, 1890. It operates , as an integral unit, three plants in the city
of St. Louis, Missouri , at which it is engaged in the design , develop-
ment, manufacture , sale, and distribution of electric motors and elec-
tric fans . It maintains warehouses in St. Louis, New York City,
and Chicago, Illinois, and has branch offices in Detroit, Michigan,
Dallas, Texas , Cincinnati , Ohio, and Davenport, Iowa.
1 Service of the complaint, instead of being made upon the respondent, was made upon
its attorney That the respondent actually received a copy of the complaint, however,
is shown by the fact that it filed an answer to the complaint more than 3 days prior
to the gate of the hearing no, iespnndent was not, therefore piojuchced by the
irregularity
THE EMERSON ELECTRIC MANUFACTURING COMPANY 451
About 90 per cent of the raw materials used by the respondent are
shipped into St. Louis from points outside the State of Missouri.
These raw materials consist chiefly of steel, brass, copper, bronze,
sheet metal, sheet iron, cast iron, sheet copper, steel castings, copper
wire, fibre plates, steel rods, and steel shafts, and cost several mil-
lion dollars annually.
About 90 per cent of the electric fans and motors manufactured
by the respondent are shipped to points outside the State of Mis-
souri. For the fiscal year ending September 30, 1937, the respondent's
total sales amounted to over $5,000,000.
II. THE ORGANIZATION INVOLVED
Local No. 1102 , United Electrical , Radio & Machine Workers of
America, is a labor organization , affiliated with the Committee for
Industrial Organization , herein called the C. I. O.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of William H. Cortor
William H. Cortor was employed by the respondent on April 19,
1928. In 1929 he and several other employees were discharged for
"painting" one of the employees in their department who had been
playing pranks on other employees. They were reinstated, however,
within about 6 weeks. In 1935 Cortor was discharged again because
of carelessness of himself and other employees in assembling an arma-
ture, but was reinstated 3 or 4 days later. In 1934 he was threatened
with discharge for writing a menacing note to a deaf and dumb em-
ployee who had been persistently borrowing his drills, but the dis-
charge was prevented when Harry G. Weiss, a foreman who was
responsible for Cortor's reinstatement on the two occasions above
mentioned, agreed that Cortor be transferred to his department.
Cortor joined the Union in January 1937 and during a strike at
the plant from March 8 to May 17, 1937, was vice chairman of the
"sit-downers." He was also secretary of the shop stewards of the
Union.
At about 3 a. in. on November 24, 1937, he and other stewards from
the respondent's plant, in, response to a call for assistance from the
United Automobile Workers of America, herein called the U. A.
W. A., another labor organization affiliated with the C. I. 0., joined
picket lines at the plant of the Ford Motor Company in St. Louis
where a strike had been called. At about 6 a. in., while driving
around the Ford plant with one of the national representatives of
the U. A. W. A., Corter was arrested on a charge of disturbing the
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peace. He had intended to report to work at 7 a. m. when the re-
spondent's plant opened, but was prevented by his arrest from doing
so.
After his release from jail at about 11 a. m. he went to the U. A.
W. A. headquarters and from there telephoned his foreman, Weiss.
He testified that he informed Weiss that he had been detained and
had not been able to come to work. Weiss testified that Cortor stated
that he had some business to take care of and would not be in. In
any event, without explaining the reason for his absence that morn-
ing and his intended absence that afternoon, he obtained the consent
of his foreman for absenting himself from work for the remainder of
the day. He then returned to the picket lines at the Ford plant. If he
had returned to work for the afternoon shift he would have had 2
hours and 24 minutes of employment before the plant closed for
the day.
Weiss did not know the true reason for Cortor's absence until No-
vember 28 when he was informed by Fred M. Karches, the respond-
ent's personnel director, that Cortor's name, among others, appeared
in a newspaper account of arrests made on the Ford picket line. Weiss
thereupon decided to discharge Cortor, and on the next day, Novem-
ber 29, the first workday after Cortor's absence, took him to Karches'
office, where after being asked by Karches for an explanation of his
absence on November 24, he was given a discharge slip made out by
Karches and signed by Weiss, reading as follows :
Discharged-for taking voluntary leave of work to actively
participate in an attempt of the members of Coin. for Industrial
Organization to force the employees of the Ford Motor Car Com-
pany out of employment Wednesday, November 24, 1937; and
for being arrested and charged with peace disturbance in con-
nection with such action ; and previous poor deportment record
in his employment here.
The previous poor deportment record mentioned as one of the
reasons for Cortor's discharge, was stated by the respondent to con-
sist of the two discharges and the threatened discharge which we
have set forth above, as well as more recent conduct described by
the respondent as arrogant and offensive and the infraction by Cortor
of rules of conduct covered by the contract between the Union and
the respondent. Karches testified that on November 1 one of the
foremen had recommended the discharge of an employee, Goss, for
disobeying an express order prohibiting the distribution of union
bulletins at the plant and that Cortor and several other employees
accompanied Goss to Karches' office; that when Karches discharged
Goss, "Cortor, in a very arrogant manner, stepped forth and said,
`Well you had better discharge me too' 11 and claimed to have also
THE EMERSON ELECTRIC MANUFACTURING COMPANY 453
distributed the bulletins in violation of the respondent's orders; that
Karches, after an investigation, discovered that Cortor had not been
distributing the bulletins; that he so informed Cortor and told him
that he could consequently not be discharged for that reason but
that Karches would be glad to accommodate him if he insisted upon
being discharged ; that Cortor thereupon withdrew his request. Cor-
tor's account of the incident was to the effect that he did not ask
to be discharged but only insisted that he would not return to work
until the dispute concerning Goss' discharge was favorably disposed
of. The infraction of rules referred 'to by the respondent as con-
tributing to his poor deportment record consisted in Cortor's visits
with employees in departments other than his own without the
permission of his foreman. Weiss testified that foremen had upon
several occasions telephoned him, informing him that Cortor was
visiting in their departments and inquiring whether he had permis-
sion from him, Weiss, to visit; that upon such occasions Cortor had
not obtained permission from Weiss as provided in the Union's con-
tract; and that he had reprimanded Cortor for his conduct on those
occasions. Cortor did not deny Weiss' testimony and admitted that
on occasions lie may have been told that if he did not conduct himself
in a different manner, he would be discharged.
The record does not show that the respondent had disapproved
of or in any way discouraged organization among its employees or
had even disapproved of unionization of employees generally. It
had recognized the Union to which Cortor belonged as the exclusive
collective bargaining agency of its employees, had entered into a
written agreement with the Union on May 17, 1937, and had on
numerous occasions met and bargained with the representatives of
that Union. It knew that Cortor had at other times engaged in
picketing activities at plants other than his own and that about a
dozen of its employees other than Cortor had participated in picket-
ing the Ford plant before working hours on the morning of Cortor's
arrest. To'these activities the respondent claimed not to object, since
such activities did not interfere with the work of the employees
participating.
The complaint alleges that the respondent discharged Cortor about
November 29, 1937, and has at all times since refused to reinstate
him, for the reason that he joined and assisted the Union and engaged
in concerted activities with other of the respondent's employees for
the purposes of collective bargaining and other mutual aid and pro-
tection. It further alleges that the respondent by such discharge and
refusa] to reinstate discriminated against Cortor in regard to his hire
and tenure of employment, thereby discouraging membership in the
Union. We think it clear from the facts set forth above that the
1S7O 30-39-vol 13-:;0
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record does not sustain these allegations of the complaint. If
Cortor's discharge was based in whole or in part upon any union
activity of Cortor, we are convinced that such activity was on behalf
of the U. A. W. A. rather than on behalf of the Union. There is no
showing that the controversy between the Ford Motor Company and
the U. A. W. A. affected the relations between the respondent and
the Union, nor is there any showing that Cortor's activities on the
picket line at the Ford plant were for the purposes of effecting col-
lective bargaining between the respondent and the Union or for the
purposes of effecting self-organization among the employees of the
respondent. Nor is there any evidence that his discharge did or was
intended to discourage membership in the Union as distinguished
from the U. A. W. A. The discharge accordingly was not within the
scope of the complaint in this case.
B. Alleged interfere' ee, ie.straint, and coercion
1. Issuance of booklet of rules and information
For a long number of years the respondent had been issuing and
distributing among its employees from time to time a booklet con-
taining information and instructions on various matters pertaining
to their employment. The booklet was revised every few years to
meet changing conditions at the plant.
On or about February 1, 1938, the respondent issued a revised
edition of the booklet entitled, "Rules and Information for Em-
ployees." The 1938 issue was more full and complete than any previ-
ous issue and was the result of much study and research work done
by Karches, the respondent's new personnel manager. At the back
of each booklet was a detachable flyleaf upon which was printed :
I have carefully read and fully understand all that is con-
tained in this book of Rules and Information for Emerson-
Electric Employees, and agree to abide by the rules and informa-
tion contained therein as long as I remain in the employ of The
Emerson Electric Manufacturing Company.
Following that language was a space for the signature of the em-
ployee.
Immediately after the issuance of the booklet, the executive board
of the Union met, characterized the booklet as a "yellow dog con-
tract," and decided that all booklets which had been distributed
should be gathered up and returned to the foremen. Thereafter
representatives of the Union met with the respondent and demanded
that the respondent withdraw the booklet and that the Union be
consulted on all rules or regulations concerning working conditions
THE EMERSON ELECTRIC MANUFACTURING COMPANY 455
prior to the issuance of any booklet by the respondent. They ob-
jected specifically to, the,flyleafabove,mentioned, claiming that an
employee, by signing the flyleaf, would, in effect, be signing an indi-
vidual contract. The respondent expressed surprise that the Union
had objected to the booklet or to any of its terms, explained that the
booklet was only a reissue or restatement of rules and information
already existing at the plant, and stated that no employee would be
required to sign the flyleaf but refused to withdraw the booklet from
circulation.
The respondent contended that the flyleaf suggestion was adopted
from the research manual published by the Metropolitan Life Insur-
ance Company in 1933 and that it was placed in the booklet mainly
for the benefit of new employees and to insure the respondent that
they would read the rules and information. The respondent recited
instances in which employees who had been discharged for the viola-
tion of its rules claimed ignorance of the rules, and gave such exam-
ples as a reason for the issuance of the booklet in a more detailed
form than had theretofore been used, as well as a reason for the
inclusion of the flyleaf. The respondent denied that the rules in
any way conflicted with or modified the terms of its contract with
the Union.
The Union's contract with the respondent provided :
This agreement covers all the terms and conditions of employ-
ment, for the period beginning May 17, 1937, and ending August
1, 1938, and it is not subject to change or additions by either of
the parties.
The Union contended that some of the provisions in the booklet of
rules and information pertained to terms and conditions of employ-
ment and that the respondent, by attempting to make rules regard-
ing such subjects, was attempting to change or modify the contract
and thereby to interfere with, restrain, and coerce the employees
in the exercise of their right to collective bargaining. The rules
pertained mainly to safety and health precautions but touched to a
limited extent upon natters referred to in the contract. For example,
the contract stated that the respondent "shall have the full right to
discharge any employee for reasonable cause," but did not attempt
to state what might be considered "reasonable cause." The booklet
of rules and information enumerated certain specific offenses which
the respondent considered reasonable cause for discharge.
We have examined and compared the booklet of rules and infor-
mation with the union contract, and recognize that some terms of
the former might be interpreted by the Union as an addition to or
modification of the latter and that the issuance of such a booklet
might in some instances afford an anti-union employer an opportu-
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nity to evade or change, by its own interpretation, the terms of a
contract which it has negotiated with a union. We are convinced,
however, that it was not the intention of the respondent in issuing
the booklet to modify or in any way affect the operation of the
contract and that the provisions of the booklet may be reasonably
interpreted as in complete harmony with the spirit and terms of the
contract. In any event, we are satisfied that any question which
might arise concerning any specific objectionable rule or statement
in the booklet can be settled through the grievance procedure set
forth in the contract. The respondent has demonstrated its good
faith in that respect by notifying the Union, after the latter voiced
its objection to the flyleaf, that no employee would be asked to sign
the flyleaf.
We find that the respondent, by issuing the booklet of rules and
information without first consulting the Union in respect thereto,
has not interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them in Section 7 of the Act.
2. Refusal to arbitrate
In March 1938 the respondent commenced manufacturing an elec-
tric motor larger than any manufactured by it in several years. It
placed the new motor in the highest of its three wage-rate groups.
The Union thereupon met with the respondent and requested that
a fourth and higher wage-rate group be created for the motor. The
respondent denied this request. The Union thereupon demanded
that the question concerning whether or not a fourth and higher
wage-rate group should be created be arbitrated in accordance with
the arbitration procedure provided in its contract. The respondent
also denied this request.
The complaint alleges that the respondent by refusing to arbitrate
the wage-rate question and the question concerning whether or not
the respondent might issue its booklet of rules and information with-
out first consulting with the Union in regard thereto, and also by
refusing to arbitrate the dispute concerning Cortor's discharge, has
discouraged and is discouraging the membership of its employees in
the Union and has thereby interfered with, restrained, and coerced
and is interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act. The
respondent, pursuant to the terms of the union contract, had on
other occasions submitted to arbitration controversies involving four
discharged employees and the interpretation of part of the union
contract. On the matters now before us it met with the Union and
discussed fully its reasons for refusing to arbitrate. It never at any
THE EMERSON ELECTRIC MANUFACTURING COMPANY 457
time attempted to evade its obligation to bargain relative to such
matters.
In refusing to arbitrate the wage-rate question the respondent
pointed out to the Union that never in the history of the respondent's
operations had it maintained more than three wage-rate groups, al-
though it had previously manufactured motors as large and as heavy
as the new motor which it was then making, that wage increases pro-
vided in the contract contemplated only the three existing wage-rate
groups, and that it considered that a wage-rate grouping could be a
grievance subject to arbitration only if the rate fixed was claimed to
be lower than rates for similar work in effect on the date of the exe-
cution of the contract. The respondent assigned as its reason for
refusing to arbitrate the rules and information booklet question that
the issuance of such a booklet was its prerogative, a part of its ad-
ministrative functions; it offered, however, to arbitrate any grievance
which might arise out of an application of the rules. Without pass-
ing upon the question as to whether or not the union contract re-
quired the respondent to arbitrate these two questions, we find the
respondent's contentions tenable and are satisfied that the respondent
in refusing to arbitrate these questions did not intend to and did not
in fact, interfere with, restrain, or coerce its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
On the day following Cortor's discharge a union committee, in-
cluding Sentner, a C. I. O. national vice president, met with the re-
spondent for the purpose of securing Cortor's reinstatement. After
a heated argument and a refusal by the respondent to reinstate
Cortor, the committee departed, with Sentner announcing that he
would teach the respondent a lesson. On the same day the Union
filed a charge with the Board's Regional Director, alleging that
Cortor had been discriminatorily discharged. It was not until 3
weeks later that the Union requested an arbitration of the dispute
concerning Cortor's discharge. The union agreement provided that
a complaint regarding an "unjust or discriminating" discharge must
be in writing and filed within 3 days and that thereafter the grievance
might be arbitrated. Cortor did not follow this procedure. The re-
spondent contended that because Cortor failed to follow this proced-
ure and further because he elected to file charges with the Board
rather than follow the grievance procedure, it was relieved of its
obligation to arbitrate. Even if the respondent's contention is not
valid, as a matter of law, we see nothing more in its conduct, in the
circumstances, than a breach of its contract. We conclude that the
respondent, by refusing to arbitrate the dispute concerning Cortor's
discharge, did not interfere with, restrain, or coerce its employees in
the rights guaranteed in Section 7 of the Act.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLusIONS OF LAW
1. The operations and business of the respondent constitute :i con-
tinuous flow of trade, traffic, and commerce among the several States,
within the meaning of Section 2 (7) of the Act.
2. Local No. 1102, United Electrical, Radio & Machine Workers
of America, affiliated with the Committee for Industrial Organiza-
tion, is a labor organization, within the meaning of Section 2 (5)
of the Act.
3. The respondent has not discriminated in regard to the hire or
tenure of employment, or any term or condition of employment, of
William H. Cortor, within the meaning of Section 8 (3) of the
Act.
4. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Re-
lations Act, the National Labor Relations Board hereby orders that
the complaint against the respondent, The Emerson Electric Manu-
facturing Company, St. Louis, Missouri, be, and it hereby is,
dismissed.
MR. WILLIAM M. LF.ISERSON took no part in the consideration of
the above Decision and Order.